Citation Nr: 1418554 Decision Date: 04/25/14 Archive Date: 05/02/14 DOCKET NO. 10-37 236 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, including depression and posttraumatic stress disorder (PTSD), claimed as a result of military sexual trauma (MST) and sexual harassment. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Appellant-Veteran and her domestic partner ATTORNEY FOR THE BOARD T. Y. Hawkins, Counsel INTRODUCTION The Veteran served on active duty from April to November 1974. She appealed to the Board of Veterans' Appeals (Board/BVA) from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2013, in support of her claim, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the hearing has been associated with the Veteran's claims folder, so is of record. The claim requires further development before being decided on appeal, so the Board is remanding the claim to the Agency of Original Jurisdiction (AOJ). REMAND The Veteran attributes her mental illness, irrespective of its particular diagnosis, to MST in August 1974. To the extent she is claiming entitlement to service connection for PTSD, specifically, it requires (1) medical evidence establishing a diagnosis of the condition in accordance with 38 C.F.R. § 4.125(a), (2) credible supporting evidence that the claimed in-service stressor occurred, and (3) a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. See 38 C.F.R. § 3.304(f) (2013). See also Cohen v. Brown, 10 Vet. App. 128 (1997). The reference to 38 C.F.R. § 4.125(a) simply means the diagnosis must conform to the requirements of the Diagnostic and Statistical Manual of Mental Disorders (DSM). The Court has taken judicial notice of the mental health profession's adoption of the DSM-IV as well as its more liberalizing standards to establish a diagnosis of PTSD. The Court acknowledged the change from an objective "would evoke . . . in almost anyone" standard in assessing whether a stressor is sufficient to trigger PTSD to a subjective standard (e.g., whether a person's exposure to a traumatic event and response involved intense fear, helplessness, or horror). Thus, as noted by the Court, a more susceptible person could have PTSD under the DSM-IV criteria given his or her exposure to a traumatic event that would not necessarily have the same effect on "almost everyone." Cohen, 10 Vet. App. 128, 140-141 (1997). As also held in Cohen, a diagnosis of PTSD is presumably in accordance with the DSM criteria, both in terms of the adequacy and sufficiency of the stressor being claimed. The newer DSM-V has been officially released. However, 38 C.F.R. § 4.130 still explicitly refers instead to the prior version, DSM-IV. The regulation legally requires the Board to consider this earlier version of the DSM until such time as the regulation is changed. There is a regulation change in the works that would change the regulation to reference "the current version of the DSM." But it is unclear when that proposed change will be published. Regardless, in the meantime the Veterans Benefits Administration (VBA) and Veterans Health Administration (VHA) essentially have agreed that their target date for moving to the DSM-V was October 1st, coinciding with the beginning of this new fiscal year. It therefore is important to bear in mind that the regulation still explicitly refers to the DSM-IV, regardless of the fact that the Board may begin seeing private evidence instead referring to criteria under the succeeding DSM-V. Generally, a stressor cannot be established as having occurred merely by after-the-fact medical nexus evidence. See Moreau v. Brown, 9 Vet. App. 389, 395-96 (1996). Because, however, of the inherently personal nature of sexual abuse, including shame often associated with it, it is not unusual for there to be an absence of service records documenting the incidents the Veteran has alleged; therefore, evidence from sources other than the Veteran's records may corroborate an account of a stressor incident. See Patton v. West, 12 Vet. App. 272, 277 (1999); YR v. West, 11 Vet. App. 393, 398-99 (1998). Examples of such evidence include, but are not limited to: records from law enforcement authorities, mental health counseling centers, hospitals or physicians; and statements from family members, roommates, fellow service members, or clergy. See 38 C.F.R. § 3.304(f)(5) (The rather recent amendments to the PTSD regulation, contained in 75 Fed. Reg. 39,843 -39,852 (effective July 13, 2010), redesignates former paragraph (f)(4) as (f)(5), governing PTSD claims based on in-service personal assault). Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in the mentioned sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. VA may submit any evidence that it received to an appropriate mental health care professional for an opinion as to whether it indicates that a personal assault occurred. Id. So there is an exception to the Moreau rule in this circumstance. In Patton, the Court pointed out that VA has established special procedures for evidentiary development of claims for PTSD based on personal assault. The Court advised that the portions of the VA Adjudication Procedure Manual M21-1, Part III, paragraph 5.14c, provided "guidance on the types of evidence that may serve as 'credible supporting evidence' for establishing service connection of PTSD which allegedly was precipitated by a personal assault during military service." Manual M21-1 lists evidence that might indicate such a stressor such as lay statements describing episodes of depression; panic attacks or anxiety but no identifiable reasons for the episodes; visits to medical clinics without a specific ailment; evidence of substance abuse; and increased disregard for military or civilian authority. The Manual also lists behaviors such as requests for change of military occupational specialty (MOS) or duty assignment, increased use or abuse of leave, changes in performance and performance evaluations, increased use of over-the-counter medications, unexplained economic or social behavior changes, and breakup of a primary relationship as possibly indicative of a personal assault, provided that such changes occurred at the time of the incident. The Court has also held that the provisions in M21-1, Part III, 5.14(c), which address PTSD claims based on personal assault, are substantive rules that are the equivalent of VA regulations and binding on VA. YR, 11 Vet. App. at 398-99; Patton, 12 Vet. App. at 272. Also, in cases specifically involving claimed personal or sexual assault, the existence of a stressor in service does not have to be proven by the "preponderance of the evidence" because this would be inconsistent with the benefit of the doubt, or equipoise, doctrine contained in 38 U.S.C.A. § 5107(b). See also 38 C.F.R. § 3.102. As such, VA will not deny a PTSD claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the Veteran's service records or evidence of behavioral changes may constitute credible supporting evidence of the stressor and allowing her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. See, e.g., Bradford v. Nicholson, 20 Vet. App. 200 (2006). Here, a preliminary review of the physical and electronic ("Virtual VA") claims folders reveals that, although the appellant has a current diagnosis of PTSD (as well as of depression and unspecified bipolar disorder) rendered by a VA psychiatrist/psychologist, the clinician did not relate any mental health disorder to her reported MST or any other incident of her active military service. Rather, the evaluating clinician listed the appellant's psychosocial and environmental problems as not being close to her family and a childhood sexual assault or molestation by her father. See VA PTSD Disability Benefits Questionnaire (DBQ), December 2013. During her videoconference hearing before the Board, the Veteran reported that, since April 2012, she had been receiving mental health treatment at the VA facility in Tucson, Arizona. Significantly, she stated that her treating VA clinicians in Tucson had related her current acquired psychiatric disorder(s) to her MST in service. See hearing transcript, p. 8-10, November 2013. The most recent VA treatment reports in the file, however, are from Maine and dated in June 2011. Where VA has constructive or actual knowledge of the availability of pertinent reports in its possession, an attempt to obtain those reports must be made. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, attempts must be made to obtain all VA mental health treatment records since July 2010, including especially those from the Tucson VA facility. 38 C.F.R. § 3.159(c). Accordingly, this claim is REMANDED for the following additional development and consideration: 1. Obtain all available VA treatment records pertaining to the Veteran's mental health since June 2011, to specifically include all treatment reports from the Southern Arizona VA Health Care System in Tucson, Arizona. Since these records are in the custody of a Federal department or agency, namely VA, the attempts to obtain them are governed by 38 C.F.R. § 3.159(c)(2), so make as many attempts to obtain these records as this VA regulation requires. Also appropriately document these efforts and notify the Veteran if unable to obtain these identified records. 38 C.F.R. § 3.159(e)(1). 2. If additional records are obtained, consider obtaining supplemental comment to the December 2013 DBQ (if, as an example, these additional records were not considered in that prior mental status evaluation). 3. Then readjudicate this claim in light of this and all other additional evidence. If this claim continues to be denied, send the Veteran and her representative a Supplemental Statement of the Case and give them time to respond to it before returning the file to the Board for further appellate consideration of this claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). _________________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).